Opinion
WR-94,984-01
12-13-2023
EX PARTE CASIMIRO AMADOR, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 70199-A IN THE 27TH DISTRICT COURT FROM BELL COUNTY
ORDER
PER CURIAM.
Applicant was convicted of aggravated sexual assault of a child and sentenced to 30 years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Amador v. State, No. 14-18-00684-CR (Tex. App. - Houston [14th Dist.] May 7, 2020) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant alleges ineffective assistance of defense counsel due to counsel's failure to: investigate, interview, and call witnesses; prepare for trial; emphasize evidence that was inconsistent with the State's case; object to improper opinion testimony concerning the child's truthfulness; and object to the introduction of unduly prejudicial evidence.
The trial court conducted an evidentiary hearing in which Applicant's witnesses testified. The court made findings of fact and conclusions of law. The court found that defense counsel failed to: timely investigate, interview, and call witnesses; prepare for trial; present evidence that the child's allegations might be implausible, even though witnesses were available to testify to the apparent contradictions; object to improper opinion testimony concerning the child's truthfulness; and object to the introduction of unduly prejudicial evidence.
The trial court concluded that defense counsel's failures constituted deficient performance, and there is a reasonable probability that his failures prejudiced the defense. The court stated that the only viable defense was to demonstrate that Applicant could not have committed the charged acts over such a long period of time in a small densely populated house without detection. But defense counsel did not attempt this defense. The court determined that defense counsel's deficient performance resulted in the denial of Applicant's only viable defense. The court concluded that there is a reasonable probability of a different result if witnesses had been called. The trial court recommended granting relief.
We agree with the trial court's determination that defense counsel performed deficiently. However, the record currently before this Court does not resolve the matter of prejudice. Specifically, in a pretrial discovery hearing, the State identified recorded statements of the child's mother and maternal grandmother and stated that the mother and grandmother were in the courthouse to testify as outcry witnesses. However, they did not testify in the guilt phase. The forensic interviewer testified at trial that the child stated that, about a year before her June 2012 outcry, she had told her mother and grandmother that she had been sexually abused, but they had not done anything. On habeas review, they denied any awareness that the child had been sexually abused. The current record does not explain how or why their pretrial statements differ from their statements in the habeas proceedings.
Further, during a pretrial hearing, defense counsel stated that he understood that challenging the child's truthfulness through the questioning of other witnesses would "open the door to a whole lot of extraneous offenses," including an occasion when a witness walked in while Applicant was sexually abusing the child. During the guilt phase, there was no evidence of such an occasion. In addition, the State noted before trial that it had a recording of the child's statement to the forensic interviewer. However, this recording is not in the habeas record. It should be considered in the prejudice analysis.
Also in a pretrial hearing, the State discussed calling outcry witnesses to testify that Applicant had committed an extraneous sexual abuse offense against another child. At trial, however, these witnesses did not testify. No evidence of this extraneous offense was presented in the guilt phase.
The writ hearing testimony of the child's brothers, mother, and grandmothers shows that Applicant would not have had opportunities to sexually abuse the child in May 2012 and June 2012. However, the child stated in her June 2012 outcry that Applicant had begun sexually abusing her about two years earlier. The writ record does not show whether Applicant would have had opportunities to sexually abuse the child prior to May 2012.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court may order trial counsel to file a second response to Applicant's ineffective assistance of counsel claims. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d).
It appears that Applicant is represented by counsel. If the trial court elects to hold a second hearing, it shall determine if Applicant is represented by counsel, and if not, whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make further findings of fact and conclusions of law as to whether trial counsel's performance prejudiced Applicant's case in light of all the available evidence. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's allegations.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.